Nevada execution could be derailed by drug company’s lawsuit

Nevada condemned killer set to die as legal fight over execution drug is waged

The drug company Alvogen, which makes the sedative midazolam, filed a complaint in Nevada's Clark County on Tuesday, citing that the Nevada Department of Corrections illegally obtained the drug for use in the execution of Scott Dozier, a former meth dealer who was sentenced to die in 2007 for first-degree murder with a deadly weapon and robbery with a deadly weapon.

The lawsuit said that to perpetuate the deception, the authorities had the midazolam shipped to the department of correction's central pharmacy rather than to the prison where the execution is to take place.

Alvogen said if the drug is used in the execution the company will suffer immediate and irreparable harm, according to the lawsuit.

The judge invited state Supreme Court review, saying she expected the Nevada execution to be closely watched by officials in states that have struggled in recent years to identify and obtain drugs from pharmaceutical companies that don't want their products used for the death penalty.

If the ruling sticks, Alvogen would become the first drugmaker to successfully sue to halt an execution.

The order by Clark County District Court Judge Elizabeth Gonzalez delaying the execution marks the first time a pharmaceutical company has succeeded in halting an execution over legal or ethical concerns. The lawsuit claims the defendants plan to use an Alvogen drug, called Midazolam, in the execution which they "illegitimately acquired".

A spokeswoman for Nevada Department of Corrections, Brooke Santina, told the Reno Gazette Journal the agency would not comment on the pending litigation. He said Alvogen had sent a letter to state officials in April telling them it opposes the use of its products in executions, particularly midazolam.

Nevada announced last fall that it was preparing to use fentanyl in Dozier's execution.

There's a limit to how much artwork and physical exercise a person can do in prison, Dozier said in court hearings and letters to the Las Vegas judge who postponed his execution.

Jordan T. Smith, an assistant Nevada solicitor general, countered at Wednesday's hearing that the state didn't put up a "smokescreen" or do anything wrong in getting the drugs.

The state is planning to use three drugs - midazolam (a sedative), fentanyl (the high-potency opioid) and cisatracurium (a paralytic) - to execute Scott Dozier on Wednesday at 8 p.m. (11 p.m. ET). The previous challenge, brought a year ago by a different company in Arkansas, was ultimately unsuccessful.

The company said the license was used on a purchase order in a deliberate attempt to dupe a drug wholesaler, Cardinal Health, into believing that the 90 vials of the medicine were to be used by a doctor in legitimate medical treatment.

Alvogen said that Nevada law is clear that it is an offence to obtain a controlled drug "by misrepresentation, fraud, forgery, deception, subterfuge or alteration".

Alvogen notes that midazolam was used in several "botched" executions, including that of Clayton Lockett in 2014, where Lockett regained consciousness during his execution and died 40 minutes later of a heart attack. Under Nevada's new execution protocol, the inmate is next given fentanyl and then cisatracurium, one to slow his breathing, the other to stop it. "It's extremely experimental", as Amy Rose of the American Civil Liberties Union puts it. His profile on Scott Dozier is titled "The Volunteer: More than a year ago, Nevada death row prisoner Scott Dozier gave up his legal appeals and asked to be executed".

"Life in prison isn't a life", the 47-year-old inmate told the newspaper. A witness testified Dozier used a sledgehammer to break the victim's limbs so the corpse would fit in a plastic storage container.

Dozier was sentenced to die for robbing, killing and dismembering 22-year-old Jeremiah Miller at a Las Vegas motel in 2002.

In 2005, Dozier was sentenced to 22 years in prison for shooting to death another drug-trade associate, 26-year-old Jasen Greene, whose body was found in 2002 in a shallow grave outside Phoenix.

The lawsuit names the director of Nevada's department of corrections, James Dzurenda, and the state's chief medical officer, Dr Ihsan Azzam, as conspiring to buy the midazolam along with an unidentified doctor who will participate in the execution. His decapitated torso was found in a suitcase in an apartment building trash bin, also missing lower legs and hands.

He did, however, let federal public defenders challenge the execution protocol drawn up a year ago by state medical and prison officials.

Nevada's last execution was in 2006.

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